Emojis in Court

Love them or hate them, it looks like “emojis” are here to stay. As of this writing, more than 3,000 emojis have been officially recognized, standardized, and named by the Unicode Consortium (a group that cares very deeply about emojis, among other things) and they have been adopted for widespread use on cell phones, tablets, email clients, and social media platforms.

Emojis now exist as a way to succinctly express everything from the ordinary and familiar ( smiling face;  thumbs-up) to the surprisingly specific ( mountain cableway; moon viewing ceremony) to the routinely misunderstood ( not “angry” but rather “persevering face;”  not “shooting star” but rather “dizzy”), to the criminally repurposed ( snowflake to mean cocaine;  rocket to mean high drug potency).

The explosive growth of this alternative form of communication is raising some interesting questions for criminal attorneys and the court system as a whole. Should emojis be considered “statements,” on equal footing with written or spoken words? If they’re not statements, then what are they? Who decides what is meant by the use of a particular emoji? Do they have to be published to the jury and included in the record as images, or can they be summarized and described by words? What should practitioners do to make sure that emojis are accurately reflected in transcripts, court orders, and appellate opinions, since many court systems are text-based and do not allow for the inclusion of images?

Let’s about it.

Emojis? Really?

I’m afraid so. If this topic makes you  and want to  your , I sympathize. It took me far longer to find and insert those three images than it would have taken to simply type the words. But like it or not, emojis are showing up as evidence up in court cases with increasing frequency.

This topic garnered some national attention a few years ago, when the U.S. Supreme Court decided Elonis v. United States, 135 S.Ct. 2001 (2015). The defendant in Elonis challenged his conviction for threatening his estranged wife on Facebook, and one of the arguments on appeal was that the posts could not be interpreted as threats because the defendant included a smiley face emoji with the tongue sticking out, indicating that he was not serious. The emoji did not end up factoring into the Court’s opinion, but to some observers it was proof that emojis had finally arrived as an issue on the legal landscape, and would likely become more common and more significant.

Recent cases across the country seem to bear that prediction out. See, e.g., United States v. Jefferson, 911 F.3d 1290 (10^th Cir. 2018) (affirming defendant’s robbery convictions, and noting that the “substantial” evidence of his guilt included not only surveillance videos and his admissions, but also a “Facebook post made after the January 9 robberies, which included a firearm emoji”);  Commonwealth v. Hunt, 94 Mass. App. Ct. 1123 (Feb. 22, 2019) (unpublished) (evidence on cross-examination to show nature of relationship and alleged bias of witness included text messages with “three kissey emoji,” “emoji of … two people with [a] heart … above their heads” and an “emoji of … [a] diamond ring”); State v. King, 2018 WL 4868127 (N.J. Super. Ct. App. Div., Oct. 9, 2018) (unpublished) (evidence in witness tampering case included Facebook post that included a picture of a subpoena, multiple references to the subject as a “rat,” and “seven middle finger emojis”).

According to Professor Eric Goldman, a law professor at Santa Clara University who tracks this issue, the prevalence of emojis in court cases across the country has followed a “J curve” pattern, beginning with just a few cases back in 2004 but then rising exponentially; in fact, more than 30% of all reported court cases mentioning emojis appeared in 2018 alone.

I have not yet seen any North Carolina or 4^th Circuit cases in which the presence, admissibility, or meaning of an emoji was a crucial factor in the decision, but they are undoubtedly beginning to show up in the evidence. See, e.g., State v. Aracena, __ N.C. App. __, 817 S.E.2d 628 (Aug. 21, 2018) (unpublished) (evidence in robbery and assault case included a Facebook post directed at victim boasting about the assault, along with “five laughing emojis with tears coming out”); see also Nexus Services, Inc., v. Moran, 2018 WL 1461750 (W.D. Va., March 23, 2018) (concluding that an email between two co-workers which contained a “Hitler emoji” was not an attempt to chill plaintiff’s speech – it had to be “taken in context” where “one was jokingly calling the other a ‘meanie’ and a taskmaster”).

Emojis: Words, Thoughts, Both, or Neither?

As explained here, emojis first appeared in the mid- to late-1990’s as a feature on select Japanese cell phones, but their popularity exploded in the early 2000’s after they were standardized to work across multiple platforms and in different countries. The term “emoji” comes from the Japanese words “e” (絵, or “picture”) and “moji” (文字, or “character”), so emoji literally means “picture character.”

Emojis aren’t words in the traditional sense, of course, but it’s clear that they are something more communicative than mere doodles or illustrations.  Like their text-based ancestors known as “emoticons” (figures or symbols such as  ¯\_(ツ)_/¯ or :-), created with regular keyboard characters), emojis can be used to add context and tone to an accompanying statement, or they can express a separate and independent thought on their own. Conceptually, this makes emojis analogous to gestures, nods, or facial expressions that can likewise modify the meaning of accompanying words (like a shrug for “no offense,” or a glare for “I’m not kidding”), or convey a complete thought (like a nod to mean “yes,” or pointing to mean “over there”), depending on the circumstances.

Until we receive specific guidance from North Carolina’s appellate courts, and in light of the fact that emojis are being used as a form of communication, the most logical approach is to treat them as “statements,” comparable to any other type of “written or oral assertion or nonverbal conduct intended by the declarant as an assertion.” G.S. 8C-1, Rule 801(a) (definition of hearsay); see also State v. Satterfield, 316 N.C. 55 (1986) (“An act, such as a gesture, can be a statement for purposes of applying rules concerning hearsay”). Treating emojis as nonverbal statements provides a ready-made body of law for tackling issues like relevance and admissibility, which is a great start, but it gets a little more complicated when we turn to the matter of interpretation.

What Do Emojis Mean?

Imagine a troubled young defendant who texts his girlfriend that he is willing to   her disapproving parents so that they can finally be together. She texts back with what the Unicode Consortium calls the “folded hands” emoji: . What does that reply mean? Is it hands clasped in prayer, begging him not to do it? Or praying that he will? Or perhaps she misunderstands the emoji and thinks it’s a “high five,” celebrating their murderous plan? Additionally, consider what happens if the sender and receiver are using different cell phones or operating systems. The same emoji, “pistol,” displays this way on a Microsoft device:  but it shows up like this on an LG smartphone:  . The potential for misunderstandings and conflicting interpretations is (literally) easy to see.

In many cases, the jurors will make the final determination about the true meaning or intent behind an ambiguous emoji, just as they would with any other potentially incriminating statement that the declarant contends was “only a joke” or “not how I meant it.” And to help the jury answer those questions, it appears that we have already entered the age of emoji interpretation expert witnesses. In a recent human trafficking case out of California, the state qualified a detective “as an expert in the areas of pimping, pandering and prostitution,” based on his training and experience, and the expert was permitted to testify about several emojis that the defendant texted (a crown, high heels, and bags of money) and the meaning of those images “specific to commercial … sexual exploitation.” See People v. Jamerson, 2019 WL 459012 (Cal. Ct. App., February 6, 2019) (unpublished).

But judges, magistrates, attorneys, and law enforcement officers also need to become at least conversationally fluent in emoji-speak, in order to address a number of other issues that could surface before trial. For example, is the “folded hands” emoji in the example above enough to charge the girlfriend with conspiracy? Is it admissible at trial as a statement of a co-conspirator? If the girlfriend testifies and insists that her reply meant “I’m praying you don’t do it,” can the state still argue the mistaken high five interpretation as a “reasonable inference” in closing? Opposing parties will inevitably disagree on what certain emojis mean, but it helps if both sides can at least agree on their names and recognize the differences between them.

How to Publish and Preserve

The growing use of emojis in texts, social media posts, and emails poses two additional problems for the court system. First, how should emojis be presented in court proceedings, such as when an officer is using them as part of a warrant application, or when an attorney wants to publish them to the jury? Second, how should they be documented and preserved in court records, such as transcripts or appellate opinions?

Whenever possible, the best option is to use the entire text, email, or post, showing all the words and emojis together. Officers can attach a printout or screenshot to their warrant applications, and attorneys can publish to the jury by handing out copies and letting the jurors see it for themselves. This approach helps to avoid disputes about misrepresentation or cross-platform display errors, and best ensures that the full and true intent of the communication will be conveyed (whatever the parties contend that intent is).

If including an image is not possible, it is imperative that the written description of the emojis be as complete and accurate as possible, preferably by using the standardized Unicode Consortium names. There are 148 different emojis listed in the “Smileys and Emotion” category alone, so a vague description like “smiley face emoji” could lead to confusion or error. In addition to its distinctive name, every emoji also has a unique code assigned to it. Including both the full name and the code in the description will ensure that “sleepy face” (, U+1 F62A) is not incorrectly characterized as “drooling face” (, U+1 F924).

The least desirable option is to leave the emojis out entirely, or replace them with a generic placeholder in brackets like [emojis omitted] or [various emojis]. For all the reasons explained above, this option doesn’t accurately convey the full meaning of the statement. See, e.g., United States v. Johnson, 280 F. Supp. 3d 772 (D. Md., Nov. 21, 2017) (referencing an Instagram post where defendant wrote “…they welcomed me home like it was 88 [emojis]. Real luv never fails…”). The post in Johnson would read quite differently if the defendant said he was being “welcomed home” with  instead of .

Emoji or Emojis?

Finally, what is the correct plural of emoji? If there are several of them in a row, is it still “emoji” like we would say “the seven samurai,” or should it be “emojis” like we would say “multiple tsunamis?” As you can tell from this post I’ve already made my choice, but for a contrary view check out this Atlantic article. Let the comment war begin.